Essayist Writes Popular Essay... Then Sends 'Non-Negotiable' Invoice To Church Who Posts It Online

from the how-nice-of-her dept

We've seen recently how some companies have turned copyright into something that certainly approximates a tool for extortion. Rather than threatening to break up your store with a baseball bat, they threaten to sue you if you don't pay them for infringing on their copyrights. Even in the cases where the copyright has been infringed, this whole process seems incredibly sleazy and underhanded -- and it's even worse when it's done against those who are clearly "accidental" or "unaware" infringers. Or you can take it even further: using this method to demand a non-negotiable payment from a church.

Reader Sam Cook writes in to let us know how a woman named Linda Amstutz is going around threatening pretty much anyone who posts her essay/poem called "If my body were a car." It's apparently one of those essays that gets regularly passed around the internet -- often without attribution. While you can understand why the author might get a bit upset about it getting passed around without attribution, it appears that Amstutz has taken it to another level. She could alert those who are posting it with the evidence that she's the author and ask, nicely, for proper attribution. She could also then use that fame and celebrity to get other commissioned writing projects, or maybe a book.

But no. She just sends them bills.

She (or, rather, her "literary agent" Mary Taylor Smith) sends nasty letters to people demanding immediate payment of $750, significantly more than anyone would ever pay for such reprint rights -- using the fact that statutory copyright infringement violations have a $750/infringement starting point (which, we already know is ridiculous). Of course, Taylor Smith never seems to suggest that anyone might have a fair use exemption. She just sends the letter and an invoice demanding payment.

A couple years ago, the well-known author Orson Scott Card found out about Amstutz and Taylor Smith's effort to abuse copyright law, and wrote up a blog post that pretty accurately described the picture. He notes that those who are posting the essay are almost certainly infringing on the copyright, but that's no excuse for Amstutz's actions, whom he refers to as "a moderately talented but extremely greedy, litigious, and self-righteous author:"

Now, her essay was originally published in Ozark Senior Living magazine. You can bet that she did not receive $750 for first publication. She may not have been paid at all.

Furthermore, $750 is a ridiculously high price for reprint rights for essays. I have stories reprinted all the time -- sometimes award-winning stories twenty times the length of "If My Body Were a Car," and for which I was originally paid many times $750. But the reprint rights usually go for $300 or less, and that's fair.

Besides the money, you see, I get to have that story out there collecting new readers for me...

The web is full of people who don't understand that websites are publications. Nobody gave them a course in copyright law before they put stuff up online. Most of them are decent folks who, as soon as someone tells them they're doing something wrong, will immediately correct their error.

But Amstutz is not interested in understanding human failings. Instead, she has seized upon a means of terrifying people into paying her ridiculous amounts of money.

It's as if you went into a store, inadvertently broke a vase worth $75, only to find that the store manager is going to make you pay $750 on the spot, or else you'll be hauled off to jail for vandalism and fined $30,000.

Yep. $30,000. Because that's what Mary Taylor Smith, Amstutz's agent, misleadingly tells you you'll have to pay. Here's her exact language: "The minimum damages for copyright infringement in a court of law is $750 and is punishable up to $30,000, plus attorney fees and court costs."

Yes, but that $30,000 is a maximum. There is zero chance that a rational court would charge a mom-and-pop non-profit website anywhere near that amount for infringing the copyright of a piece of writing that probably earned $100 or less on first publication. Especially when they took the essay down the moment they realized it was a copyright infringement.

Amstutz also has a rather obnoxious webpage up about this topic, saying that she's building a list of all the people who refused to pay and will soon sue them all (at which point she'll also "rescind" the invoice for $750, and try to get much more in court. She also has a "lesson" in copyright which gets a lot of the details wrong (she calls infringing stealing, makes no mention of fair use at all, and says you can never use someone else's words without permission, etc.)

Card points out that this does, indeed, feel like extortion, even if it is infringement:

Amstutz brags about just how much money she intends to extort from anyone who trips over her essay.

Because that's what it seems like to me: extortion. Yes, republishing her essay is an infringement of copyright. But most people who do it are ignorant of what they're doing. Amstutz preys on these people, hovering to see who falls into the trap, and then threatening them and bullying them to pay her far more than the reprint rights are worth, under threat of maximum fines they would never have to pay.

There are plenty of people like this in the world -- vultures who prey on people who make mistakes. I'll wager that Amstutz makes far more money from legal extortion than she makes as a writer. She has left writing far behind. Now she's just a bully, like a big kid threatening little kids so they'll turn over their lunch money.

Card, as he did when JK Rowling started bullying the author of the Harry Potter Lexicon, points out how unoriginal the idea of Amstutz essay is in the first place. He points out that plenty of others have written similar things. While he says, correctly, that this doesn't change the fact that her specific expression is covered by copyright, it does raise questions about why Amstutz thinks her work is so special. His suggested solution: stop posting or forwarding her writings and return her "to obscurity where she belongs."

Finally, he shows how an author should respond to such flattery, by granting everyone the right to forward his works online, as long as they properly credit it. He does ask that people ask permission to repost his essays, but says he'll often grant the right, free of charge with little hassle.

Re: Anymous Coward

Copyright is a TOOL. Nothing more, nothing less either. And, like any tool, it can be and is being viciously misused by a culture of "my lawyer can beat up your lawyer" and where the ONLY entities who have rights are either people like La Amstutz or greedy corporations.

Re: Re: Anymous Coward

If my body-were a Horseless carriage, this is the time I would be thinking
about trading it in for a newer model. I've got bumps and dents ,
and scratches in my finish and my paint job is getting a little'
dull, but that's not the worst of it-.
My fenders are too wide to be considered sty1ish.They were
once as sleek as a little Miata; now they look more like my
mother's old Buick. '
My seat cushions have split open at the seams.
My seats are sagging.
Seat belts? I gave,up all belts when Ben & Jerry's opened a
shop in my neighbord ,
Air bags? FoigetitThe onlY'.bagifl have'these daynu'e
under my eyes, Not counting:the saddlebags, of course.
I have sooooo many miles on my odometer. Sure, I've been
many places and seen many things, but when~sthe last time an
appraiser factored life experiences against depreciatiQn?
My headlights are out of focus and it's especially hard to see
things up close. .
My traction is not as graceful as it once was. I slip and slide
and skid and bump into things even in the best of weather.
My whitewalls are stained with varicose veins.
It takes me hours to reach my maximum'speed.
I'm burning fuel at an inefficient rate.
But here's the worst of it - almost every time I sneeze,
cough or sputter -I leak oil.
I'm so ready for a trade in!
Anyone know where I can get a good deal?

Re: Re: Anymous Coward

That's pretty disingenuous. Copyright isn't just a tool that an individual can pick up and throw at another individual. It's a law that's in place that various entities are obligated to enforce and deal with (courts, etc). It can and is misused legally. A gun is a tool, if I get caught shooting someone in the foot I go to jail. The problem with copyright is that it has the force of law behind it.

"Here's the thing: an editor, or webmaster's, job doesn't end with Spell Check. It is the duty of the editor, or webmaster, to ensure that all words (and music and photographs and artwork) published are original, created either by yourself, or someone who has granted you permission to use their work. If someone shows you something they received in an email, or from a magazine, or they read it on the Internet, then you should not be publishing that work. Do not publish any work that you do not have written permission from the author to use. It is the only way you can be safe from the offense of Copyright Infringement. "

Re: Amazon and Border's

It's a new business model...

1. Write something witty.
2. Copyright it.
3. Distribute it all over the internet...without my information.
4. Once people start to distribute it themselves, claim ownership and sue the crap out of everyone.

Re: Re: Amazon and Border's

Orson Scott Card calling someone self-righteous is a trifle hilarious. Be sure to read his anti-gay-marriage screeds for just a taste of it. His essay on the topic is a regurgitated series of talking points polished to a high sheen, and serves mostly as a nice little smokescreen for his LDS involvement. It's intellectually dishonest, at best.

And check out "Orson Scott Card Has Always Been an Asshat" on kuro5hin. What a reactionary fool he is. He writes ONE book which is to teen geek boys as Twilight is to teen girls and suddenly he's untouchable.

Properly Attributed

If my body were a car, this is the time I would be thinking about trading it in for a newer model.

I've got bumps and dents and scratches in my finish and my paint job is getting a little dull, but that's not the worst of it.
My fenders are too wide to be considered stylish. They were once as a sleek as a little MG; now they look more like my mother's old Buick.

My seat cushions have split open at the seams. My seats are sagging. Seat belts? I gave up all belts when Ben & Jerry's opened a shop in my neighborhood.
Air bags? Forget it. The only bags I have these days are under my eyes. Not counting the saddlebags, of course.

I have soooooo many miles on my odometer. Sure, I've been many places and seen many things, but when' s the last time an appraiser factored life experiences against depreciation?
My headlights are out of focus and it's especially hard to see things up close.

My reaction is not as graceful as it once was. I slip and slide and skid and bump into things even in the best of weather.
My whitewalls are stained with varicose veins. It takes me hours to reach my maximum speed. I'm burning fuel at an inefficient rate.

But here's the worst of it - almost every time I sneeze or cough, my radiator seems to leak.

Re:

OSK

I really wish I could buy some of Card's books, I think he's a great writer. Unfortunately, I can't give money to anyone who OPENLY uses it to suppress others. Trump may not like the idea of gay-marriage, but he doesn’t organize huge rallies against it.

Re:

"Be sure to read his anti-gay-marriage screeds for just a taste of it."

Er, that's not being self-righteous. It's being a good Mormon. I don't happen to agree with his stance, nor am I blind to some of the problems I see in Mormonism, but to compare that as self-righteous with some cooze running around using questionable tactics to bilk money out of people is kind of ridiculous. He posted an opinion that happns to be in line with his religion. This ho-bag is suing people....big difference.

"He writes ONE book which is to teen geek boys as Twilight is to teen girls and suddenly he's untouchable."

Er, which of the 7+ Ender's Series novels are you referring to as his "one book"? Not to mention the Alvin novels, the Mayflower books, or somewhere in the neighborhood of 10 standalone novels and then his theater scripts etc. etc. etc.

Oh, and you clearly have no appreciation for good writing, nor an understanding of literary markets if you're placing his work in the Adolescent market....

Re: OSK

Her Blog's "Copyright Notice"

LOL - from her joke of a blog:
"Copyright Notice
I'm putting a copyright symbol here to tell you that everything on anotherlinda blog is copyrighted, but the truth is that as soon as anyone - you or me or the poet down the street - writes anything, it is automatically protected under the copyright laws. Nonetheless, I am adding the copyright symbol and filing the necessary paperwork to have all my work protected. I'll make you a deal: if you don't steal my work, I won't steal yours. And if you'd like to reprint any of my writing or images, please email me for permission."

Re: Properly Attributed

was a dcma takedown sent? if not how could they be blamed for not knowing it was copyrighted
i'm not a lawyer but my defence would be as sonn as we were told it was copyrighted it was taken down as per a dcma request

Re: It's a new business model...

Modification:
1) Make contract to create something witty.
2) Buy copyrights for it.
3) Distribute it all over the world or advertize using MTV,Radio,...
4) Once peaple start to distribute it themselves, claim you fight against piracy, ...sue everyone.

Yes, these are talking points because his essay mysteriously! coincidentally! just-happened-to! contain the same anti-gay-marriage arguments that were going around at the time. That's how you can recognize them.

And yes, I have read many of his other books. I was "gifted" (gack!) with the bulk of the Ender's Shadow series, as well, and found the books rather painful to plow through. I flinched my way through Homebody. But be honest ... he's been coasting on Ender's Game for the whole of his career.

He can have his own opinion, and being a Mormon may certainly inform it (and wow did that come through in Homebody -- I didn't know he was LDS but guessed it after reading this), but it boils down to "Jesus said this is naughty." He should be honest and say, "My God disapproves of his," rather than coming up with a bunch of other arguments about how society is going to end because the nuclear family will be destroyed. By developing and promoting other arguments, rather than the source of his stance, he's arguing in bad faith. It's an unattractive behavior.

Re: Properly Attributed

The point of exploitation that copyright laws have been taken to is insane. I'm just waiting for copyright to be copyrighted, so that everyone someone starts to sue they have to pay up for the use of the term. Would at least weed out the small and the obviously wrong.

Re: Re: Re: Amazon and Border's

Hey kettle? This is pot. You're black!

Her "reprint" of her (not quite awful) essay is a scan from page 20 of the November 2003 edition of "Ozarks Senior Living" that just so happens to include an article entitled "Making Medicare Make Sense". I would have to conclude that "Ozarks Senior Living" is a copyrighted work.

I'll bet she didn't bother to get permission to reprint that article along with her own work.

Ignorance as a defense?

First off, IANAL. But since when did ignorance become a defense? It is acknowledged several times that yes, the people who republished her poem/story did in fact infringe on her copyright. Her demand is excessive - agreed. But being ignorant of a law does not mean you are exempt from that law - even if you took the offending material down immediately upon notification. She may be an absolute twat for going about it the way she did, but by the looks of it she has a legitimate case.

Re: Re: OSK

Copyright - Use only in case of unfair profit or plagerism

I supported myself for more than two years as a freelance writer. I was assigned a topic, wrote the piece, was paid, and was returned copyright, after a year, by the purchaser. I have found some of my work republished on the Internet without my expressed permission, but it still had my name on it and I feel that it's just free advertising. I had already been paid and had no further use for the work.

However, if someone was passing my work as there own or selling it, I would have a problem with it and send a take-down order. Linda Amstutz (or the agent) are simply handling this badly. Good luck with future work for either of them.

Re: Re: It's a new business model...

Re:

Though I don't agree with his views on gay marriage at all, there can be no doubt when you read them that he has thought things through fully and totally understands the implications of what he is saying, and believes in them. That counts more to me than the opinion itself when it comes to evaluating someone as a thinker.

Re: Re: OSK

So it is intolerant to be intolerant of those people who are intolerant of you? ROFL!!!

Using your "logic", then, it is the height of intolerance for Jews to be intolerant of NAZIs? And yes, I *DO* compare OSC to NAZIs because of some of his writings about gay people *DO* call for extermination and confinement to camps, etc.

OSC had some success with a series of novels, but so did L. Ron Hubbard and we all know his only talent was brainwashing idiots to fork over all their money to his "religion". That doesn't mean their writing was all that remarkable or "untouchable".

There's an important point here that I haven't seen mentioned yet: The date of first publication was November 1, 2003. She didn't register her copyright until October 28, 2005.

According to the US Copyright Office, you are only entitled to statutory damages and legal fees if your registration is done within 3 months of first publication. Otherwise, your registration only serves to verify that you are the copyright holder, and you are only entitled to actual damages (i.e. what you would have been paid had the infringer properly licensed the usage to begin with).

The first question a lawyer will ask when you bring him or her an infringement case is, "Did you register your copyright?" And the second question will be, "Was it before or within three months of publication?" If the answer to either question is no, I can't imagine they'd have an incentive to take the case. Certainly not a financial incentive, anyway.

The lesson here for everyone is: Don't wait until you find out you've been infringed before you register your copyrights. Do it asap.

Quote from the US Copyright Office FAQ: "Before an infringement suit may be filed in court, registration is necessary for works of U.S. origin. If made before or within five years of publication, registration establishes prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate. If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Also, registration allows the owner of the copyright to record the registration with the U.S. Customs Service for protection against importation of infringing copies."

Re: Re: Re: OSK

"Using your "logic", then, it is the height of intolerance for Jews to be intolerant of NAZIs? And yes, I *DO* compare OSC to NAZIs because of some of his writings about gay people *DO* call for extermination and confinement to camps, etc."

Re:

In addition to all of the above rebuttals, there is no "smokescreen" for his LDS "involvement". He is completely open about being an active member of the LDS Church. How you feel about that is up to you, but don't make it sound like he's trying to hide it.

Re: Re:

Without registering, you're not entitled to legal costs. You're only entitled to actual damages.

It's not "being a d!ck about it" to seek fair compensation for copyright infringement. If a big company uses one of your photos in a national ad campaign without giving you credit or payment or even asking your permission, good luck finding an IP attorney to represent you if you haven't properly registered your work, and good luck going up against them without one.

Re:

ahh... well, its obviously derivitive in nature... but since its also parody and saterical... the following is free for anone who would like to replaice Ms. Amstutz ode to her failing torso:

If her body were a car
it sure WOULDNT go too far
Id have gone right straight
to a trade-in state
with all the bumps and dents
those scratches and rents
the paint is not all
thats failed this fall
your copyright skill
shows you a shrill
and honestly?
your poetry sucks.

The following is NOT her poem

but you can see it is very much based on it (and rhymes much better than hers):

If my body were a car,
It wouldn’t travel very far
And I would begin
To think of a trade in
I've got bumps and dents
Scratches and rents
My paintwork is dull
And its time for a cull
No time for mollycoddle
Just get a newer model
I can’t focus my headlights
And I steer to the right
My upholstery is lumpy
My traction is bumpy
I skid, slip and slide
Instead of skip and glide
Even in the best of weather
I struggle to keep it together
My whitewalls are stained
With my varicosed veins
I have a low maximum speed.
I’m an unpredictable steed
I don’t get anywhere quickly
My fuel burns inefficiently.
But the worst of the wheeze
Almost every time I sneeze
Or I cough or I sputter
I leak from my radiator
And a warning to buyers
My exhaust backfires

Someone might want to notify Disney/ABC...

It seems as though Linda is just another Copyright Hypocrite: Non-Attributed Boston Legal Photo? Or perhaps this falls under the 'fair use' clause since she apparently has the equivalent of a post-menopausal hardon for James Spader?

I wonder where she appropriated that jpg if not off the internet? It surely didn't come from some clipart collection cd she bought - and then forgot to mention. Or perhaps James Spader or Disney might have stolen her essay ala "if you don't steal my work, I won't steal yours"?

Man it's hard to take the "moral high ground" on the internet these days!

Re: OSK

So far over board and no clue about how it works.

I am a Professional Photographer and have to deal with this all of the time. Yes, she is right that under most infringement you can recoup some money on the use but is this use really "harming" her? I have come across many of my shots used without approval. The newest was on a current prime time TV show. This ticked me off for a few seconds, but then i was not really upset. I get free advertising and more exposure to different future clients. If a reprint is used in a bad situation then yes. If you simply contact the person and ask that they remove the item 90% will remove it or at least give you credit for your work. The point is turning a person into a bad connection for future contact is a bad idea. I only have had to "get nasty" less than 10 times over the years. When I do need to I clearly make sure that they know what they are getting into. I send a packet that has: Copy of the law (highlight the portion needed), proof of ownership, letter, price structure if they continue to use my creation and the date in which i expect a answer (7 days) and when I will file suite (30 days).

Copyright

This is something that I learned in my very first class in college, NEVER QUOTE OR REFERENCE OR EVEN REPHRASE SOMETHING ORIGINALLY WRITTEN BY ANOTHER WITHOUT GIVING PROPER CREDIT! The punishment? I could be expelled for repeatedly not properly citing the references I use. This is English 101.

Also, Why do people think it's somehow greedy for a writer to be paid/receive credit for her work? And as someone who writes myself, I know how personal those words are, and how much work they are. If a writer depends on her words for livelihood, and works hard and comes up with something wonderful, having it quoted is a marvelous thing. But having it quoted without any reference to who people are quoting, that's a horrible thing.

Re: So far over board and no clue about how it works.

Isn't it only free advertising if proper credit is given? I think that's her issue, that there is no reference at all to who the author is, so it's not free advertising at all. It's not helping her at all.

IF MY BODY

Ms Amstutz' "litterary agent" extorted TWO car clubs I belonged to regarding her "essay." One paid and the other, to my knowledege, did not. I got an education when I researched and found how many clubs had immediately taken all newsletters of the internet. I was in touch with SIX other clubs across America who were in the same situation as my two clubs. Opinions varied widely as to what course to take. Some clubs were lucky enough to have copyright attorneys to advise them. Even they admitted it was quicksand. The club I was directly responsible for paid a REDUCED fee (because we learned another club had received a similar offer). We received a message relieveing us of liability. I STILL HAVE IT! I am not aware of my other club being the recipients of any legal action to date and it's been over six years now.